I. SUMMARY OF DECISION 1 The formal decision by Secretary of Commerce Wilbur L. Ross, Jr. on March 26, 2 2018 to add a citizenship question to the 2020 Decennial Census violated the Administrative 3 Procedure Act (“APA”) and the Enumeration Clause of the United States Constitution. 4 Nearly a year before issuing that decision, on May 2, 2017, Secretary Ross sent an email to 5 Deputy Chief of Staff Earl Comstock stating in part “I am mystified why nothing [has] been 6 done in response to my months old request that we include the citizenship question. Why 7 not?” What ensued was a cynical search to find some reason, any reason, or an agency 8 request to justify that preordained result. 9 As to the APA, one need look no further than the Administrative Record1 to conclude 10 that the decision to include the citizenship question was arbitrary and capricious, represented 11 an abuse of discretion, and was otherwise not in accordance with law. In response to 12United States District Court

Secretary Ross’s demand, Comstock began to search for an agency that would be willing to 13 request the inclusion of the citizenship question in the 2020 Census. When initially 14 approached by Comstock about the citizenship question, the Department of Justice (“DOJ”) 15 opted not to request its inclusion in the census. Comstock then reached out to the Department 16 of Homeland Security, which similarly declined to request the addition of the question. Only 17 after Secretary Ross personally interceded with then Attorney General Jeff Sessions did the 18 DOJ switch its position and request the inclusion of a citizenship question, ostensibly to 19 assist in the enforcement of Section 2 of the Voting Rights Act (“VRA”). 20 Despite unrefuted evidence produced by the professional staff of the Census Bureau 21 that inclusion of a citizenship question would likely result in a significant differential decline 22 in self-response rates within noncitizen and Latino communities and that the requested data 23

24 2 There is significant overlap in the arguments and evidence presented by the San Jose 25 Plaintiffs and the California Plaintiffs. Accordingly, certain portions of this order will treat Plaintiffs arguments jointly. 26 3 The parties have stipulated to over one hundred undisputed facts, which can be found under 27 Exhibit A to the Joint Pretrial Statement (ECF 144 in Case No. 18-cv-01865).

23 In order to establish standing under Article III of the Constitution, a “plaintiff must

24 have (1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the

25 4 26 Several entities and individuals have filed motions for leave to file amicus briefs in this matter. Although these amicus briefs do not form the basis of this opinion, each of these 27 motions is hereby granted.

3 560-61 (1992)). As the party invoking federal jurisdiction, the plaintiff bears the burden of

4 establishing all three requirements by a preponderance of the evidence. Lujan, 504 U.S. at

5 561.

6 B. Findings of Fact Related to Standing5

7 1. Inclusion of the Citizenship Question on the 2020 Census Will Cause a Differential Decline in Self-Response Rates 8 1. Undisputed evidence in this case shows that adding a citizenship question to the 9 2020 Census will cause a differential decline in self-response rates for noncitizen and 10 Hispanic households. 11 2. Defense expert Dr. John Abowd, Chief Scientist and Associate Director for 12 Research and Methodology at the Census Bureau, testified credibly that the Census BureauUnited States District Court

13 has produced quantitative evidence that adding a citizenship question to the 2020 Census 14 will lower self-response rates. Tr. 797:20-25 (Abowd). He specifically endorsed the Census 15 Bureau’s finding that the citizenship question will lead to a lower self-response rate in both 16 noncitizen and Hispanic households, New York Tr. 881:19-882:1 (Abowd); id. at 918:3- 17 919:1 (Abowd), and that this lower response rates will harm the quality of census data, id. at 18 882:2-5 (Abowd).6 The Plaintiff experts similarly endorsed these conclusions. See Part 19 III.B.1.e, infra. 20 a. December 22 Census Bureau Memo 21 3. The analysis that underpins Dr. Abowd’s testimony is set forth in three 22

23 5 24 Any conclusion of law that is mistakenly characterized as a finding of fact in this order may be recharacterized as a conclusion of law, and vice versa. 25 6 The parties have stipulated to the admission of Dr. Abowd’s trial testimony in the New 26 York matter, subject to Defendants’ standing objection to the consideration of evidence outside the Administrative Record in adjudicating the merits of this action. Stip. & Order re 27 Abowd Trial Transcript (ECF 172 in Case No. 18-cv-01865).

17 11. The Brown, et al. Memo summarized its findings as follows:

18 This paper’s examination of several Census Bureau surveys with and without citizenship questions suggests that households that may contain noncitizens 19 are more sensitive to the inclusion of citizenship in the questionnaire than all- 20 citizen households. The implication is that adding a citizenship question to the 2020 Census would lead to lower self-response rates in households potentially 21 containing noncitizens, resulting in more nonresponse follow-up (NRFU) fieldwork, more proxy responses, and a lower-quality population count. 22

23 PTX-160 at 54. 24 12. The memo presented data showing that citizenship-related questions are more 25 sensitive for Hispanics and that, because Hispanics have higher rates of nonresponse for 26 citizenship than for sex or age, they could be disproportionately impacted by adding a 27 citizenship question to the 2020 Census questionnaire. PTX-160 at 7-10. 28 CASE NO. 18-cv-01865-RS; 18-cv-02279-RS 11 Case 3:18-cv-01865-RS Document 205 Filed 03/06/19 Page 12 of 126

9 estimate, which was based on 2016 data. Id. at 944:25-945:4 (Abowd).

10 e. The Plaintiff Experts’ Testimony

11 32. The Plaintiff experts’ testimony further supports the conclusion that the

12 citizenship question will cause a greater differential decline in self-response rates thanUnited States District Court

13 estimated by Brown, et al.

14 33. Dr. Colm O’Muircheartaigh, professor in the Harris School of Public Policy and

15 senior fellow at the National Opinion Research Center (NORC) at the University of Chicago, testified that he agrees with the Census Bureau research discussed above. Tr. 33:4-17; 16 145:15-166:15 (O’Muircheartaigh). Dr. O’Muircheartaigh also cited additional factors that 17 will exacerbate the effects of the differential decline in self-response rates caused by the 18 citizenship question on the ultimate enumeration. Id. at 166:16-174:20 (O’Muircheartaigh). 19 34. First, missing units in the Census Bureau’s Master Address File (MAF) contain a 20 disproportionate number of immigrant and noncitizen households. Tr. 166:21-25 21 (O’Muircheartaigh). The MAF is the “first building block” of census data collection. Id. at 22 122:4-6. The MAF is constantly updated throughout the census-taking process. Tr. 803:23- 23 805.7 (Abowd). In general, the census is unlikely to count persons whose households do not 24 appear on the MAF. Id. at 46:1-6 (O’Muircheartaigh). Dr. O’Muircheartaigh testified that 25 social science research, including recent research on Mexican immigrants, has observed that 26 the Census Bureau has particular difficulty identifying household addresses for immigrants 27

19 nonresponse rate attributed to the citizenship question in California is statistically higher

21 45. Based on the Census Bureau’s most current data, the average Latino household is

22 larger than the average non-Latino household. Id. at 1036:12-1037:6 (Abowd). By factoring

23 in the difference in average household size between Latino households and other households,

24 7 25 Removing California from the national self-response estimates reveals just how severe the differential decline in self-response rates are likely to be in California relative the rest of the 26 country. Dr. Barreto estimates that the decline in self-response rates in the rest of the country, excluding California, is likely to be 6.5 percent, as compared to an estimated 27 decline of 12.3 percent in California. PTX-871.

12 census if the federal government were to include a citizenship question on the questionnaire.United States District Court

13 Tr. 576:4-13.8 By contrast, Question 1 specifically referred to the Census Bureau as the

14 agency responsible for the census and asked respondents, without mentioning the citizenship

15 question, whether they would participate in the 2020 census. Id. at 440:13-441:2.9 It is

16 plausible that respondents who are more distrustful of the federal government writ large than

17 they are of the Census Bureau in particular may have responded negatively to Question 2 in

18 part because of this difference in terminology. While this hardly represents a glaring flaw, it

19 does diminish somewhat the weight to be afforded to the drop in willingness to respond

20

21 8 Question 2 of Dr. Barreto’s survey reads: “In 2020, the federal government is adding a new question to require you to list whether you, and every person in your household is a U.S. 22 citizen, or not a citizen. With the addition of a citizenship question, will you participate and 23 submit your household information, or not?” Tr. 441:4-11 (Barreto). 9 Question 1 read: “The Census is an official population count that is conducted every 10 24 years by the federal government. It requires all households to list the name, age, and race or ethnicity of every person living in the home and provide that information to the Census 25 Bureau either online, by mail, or in-person with a census taker. The Census is required to keep this information confidential, and every single household in the country is required to 26 participate. In March 2020 you will receive an invitation from the U.S. Census to fill out the census form. Do you plan to participate and submit your household information?” Tr. 27 440:13-441:2.

18 5. Inclusion of the Citizenship Question on the Census Will Result in a Loss of

Federal Funding to Several Plaintiffs 19 a. The California Plaintiffs 20 i. The State of California 21 107. The citizenship question is more likely than not to cause the State of California 22 to lose federal funding. This is because any measurable differential undercount of 23 households containing noncitizens will cause California to lose funding for its state-share 24 programs. Reamer Decl. ¶¶ 20, 74; Tr. at 676:1-2, 677:6-14 (Reamer). 25 108. Dr. Andrew Reamer, who is an expert in the relationship between census data 26 and federal financial assistance, Reamer Decl. ¶¶ 1-8, testified that a significant portion of 27

21 to work2future under a two-part formula: first funding is delivered to a state (the “State

22 Allotment”) and the State of California distributes the State Allotment among the LWD’s

23 (the “Sub-State Allotment”). Melchor Aff. ¶ 5.

24

25 11 26 A summary of judicial noticed facts pertaining to the San Jose Plaintiffs can be found at ECF 180 in Case No. 18-cv-02279. The order granting their request for judicial notice may 27 be found in ECF 176 of that same case.

1 impede the City of San Jose’s ability to obtain adequate funding when the next disaster

2 occurs. Id. ¶ 14. Indeed, San Jose is in a region prone to natural disasters, including

3 earthquakes, floods, and fires. Id. ¶ 13.

4 6. Inclusion of the Citizenship Question on the 2020 Census Increases the

Likelihood that California Will Lose Political Representation 5 145. Adding a citizenship question to the 2020 Census significantly increases the 6 likelihood that California will lose at least one congressional seat. Dr. Bernard Fraga 7 credibly testified that (1) California is expected to maintain its current level of congressional 8 representation (53 seats) if the 2020 Census does not ask a citizenship question, and (2) 9 adding a citizenship question to the 2020 Census increases the probability that California 10 will, contrary to its actual population, lose a congressional seat. 11 146. To estimate the quantitative effect of adding a citizenship question to the 2020 12 Census, Dr. Fraga looked at four scenarios of nonresponse and NRFU—two based on Dr.United States District Court

13 Barreto’s survey data, and two based on Census Bureau data. Id. ¶ 26. For each scenario, Dr. 14 Fraga estimated how much of each state’s population would not be counted in the 2020 15 Census because of the citizenship question. Id. ¶¶ 57, 58. 16 147. Dr. Fraga estimated that, based on Dr. Barreto’s survey data and assuming 17 NRFU will not remediate the differential in self-response rates (Scenario A), the citizenship 18 question would cause 12.51 percent of Californians not to be reported in the census self- 19 response. Id. ¶¶ 57-58. 20 148. Dr. Fraga performed the same calculation based on the Census Bureau’s 21 estimate of a decline in nonresponse by 5.8 percent for noncitizen households—again 22 assuming NRFU will not have a mitigating affect (Scenario C). Id. ¶¶ 57, 60. Based on this 23 estimate, the citizenship question would cause 1.68 percent of Californians not to be reported 24 in the census self-response. Because California has a higher proportion of noncitizens than 25 any other state, this was also the highest proportional undercount of all the states. Id. ¶¶ 57, 26 65. Using either the survey results or the Census Bureau’s estimate, California will always 27

18 during the 2016 ACS in census tracts with a higher than average share of noncitizen

19 households. Id. ¶ 49.

20 7. Plaintiffs Have Had to Appropriate Funds to Mitigate the Harm of the Inclusion of the Citizenship Question on the 2020 Census 21 a. California Plaintiffs 22 i. State of California 23 151. The State of California has appropriated and will imminently spend increased 24

25 12 26 Defendants argue persuasively that the “NRFU simulation” portion of Dr. Barreto’s survey does not resemble the Census Bureau’s actual NRFU process. Accordingly, the Court 27 declines to rely on Scenario B, which was based in part on this NRFU simulation.

24 13 As previously explained, the San Jose Plaintiffs also advance a claim for relief under the 25 Apportionment Clause. They do not, however, adequately establish standing with respect to the Apportionment Clause Claim as they have not shown how, even were California to lose 26 congressional representation, that would impact San Jose in particular. This finding is of little practical consequence, however, given that the San Jose Plaintiffs successfully establish 27 standing with respect to the Enumeration Clause Claim.

25 14 BAJI also advances two separate theories of associational standing. Hunt v. Washington 26 State Apple Advertising Com’n, 432 U.S. 333, 343 (1977) (setting for the requirements for associational standing). There is, however, no need to reach these theories in light of the 27 several bases for standing for the San Jose Plaintiffs that have already been discussed.

1. Compilation of the Administrative Record

1 166. Defendants produced an initial Administrative Record, along with a certification 2 and index on June 8, 2018, consisting of only 1,320 pages. See PTX-1 (AR 1-1320). These 3 materials contain little documentation of internal discussions that took place before 4 December 2017 and communications between the Departments of Commerce and Justice 5 about the citizenship question. Id. 6 167. On June 21, 2018, Defendants filed a supplemental memorandum composed by 7 Secretary Ross that revised the narrative of how a citizenship question came to be placed on 8 the decennial census. PTX-2. 9 168. On July 3, 2018, and memorialized in a July 5, 2018 order, Defendants were 10 ordered to supplement the Administrative Record in New York et al. v. Department of 11 Commerce, et al., No. 18-cv-2921 (S.D.N.Y.).16 In response to that order, Defendants 12United States District Court

produced extensive supplemental Administrative Record documents. The parties agreed that 13 all documents bearing prefix-less Bates stamps between 000001 and 0013024 are part of the 14 Administrative Record. Joint Pretrial Statement 11-13. 15 2. Secretary Ross’s Deliberations Prior to Receiving the DOJ Letter 16 169. In March 2017, the Bureau reported to Congress the five “topics” that would be 17 included on the 2020 Census, including gender, age, race, ethnicity, and homeownership 18 status. The subjects did not include citizenship or immigration status. PTX-264 at 5-15. This 19 report also listed topics limited to the ACS, including citizenship. Id. at 55. 20 170. That same month, Secretary Ross exchanged emails with his Deputy Chief of 21 Staff and Director of Policy, Earl Comstock, regarding whether noncitizens are included in 22 the census count for the purposes of congressional apportionment. PTX-30; PTX-55. 23 Comstock specifically emailed Ross an answer to “Your Question on the Census,” to 24 confirm that noncitizens are indeed counted on the census. PTX-55. 25

26 16 Judicial notice is taken of the order in New York et al. v. Department of Commerce, et al., 27 No. 18-cv-2921 (S.D.N.Y.) requiring Defendants to supplement the record.

25 3. Comstock Seeks an Agency Willing to Request Addition of the Citizenship

Question 1 174. Secretary Ross’s May 2, 2017 email led to immediate action by Comstock. On 2 May 3, 2017, Eric Branstad, a Senior White House Advisor, reached out on Comstock’s 3 behalf to Matthew J. Flynn, Senior Director of Cabinet Affairs at the Executive Office of the 4 President, to find “the best counterpart to reach out to at DOJ regarding Census and 5 Legislative issue?” PTX-85. Branstad subsequently referred Comstock to Mary Blanche 6 Hankey who was the White House liaison within DOJ. PTX-370. 7 175. Hankey directed Comstock to speak with James McHenry, the director of the 8 Executive Office of Immigration Review at DOJ. Id. Comstock spoke “several times” with 9 McHenry of DOJ about adding a citizenship question to the census. Id. McHenry ultimately 10 informed Comstock that the DOJ did not want to request the citizenship question “given the 11 difficulties Justice was encountering in the press at the time (the whole Comey matter).” Id. 12United States District Court

176. McHenry therefore referred Comstock to the Department of Homeland

13 Security. Id. DHS, however, likewise declined to request the citizenship question. Id. 14 Following his failed discussions with DHS, Comstock asked James Uthmeier, of the Office 15 of General Counsel at the Department of Commerce, to investigate “how Commerce could 16 add the question to the Census itself.” Id. 17 177. On May 24, 2017, Secretary Ross and David Langdon, a policy advisor who 18 reported to Comstock, met “all afternoon.” PTX-151 at 2. During that meeting, Secretary 19 Ross asked questions about the content of the decennial Census and “seemed . . . puzzled 20 why citizenship is not included in the 2020” census. PTX-86 at 1. Later that afternoon, 21 Burton Reist, Chief of Decennial Communications and Stakeholder Relations at the Census 22 Bureau, emailed Langdon a 1988 internal DOJ memorandum that opined the Constitution 23 does not mandate the counting of undocumented U.S. residents in the census apportionment 24 count. PTX-448, PTX-449 at 1-2. That evening, Langdon requested further information from 25 Census Bureau staff including Reist regarding “the criteria used to pick topics for 2020 26 versus ACS. Say, citizenship.” PTX-151. 27

5 that is self-reported. Id.

6 227. Further, the March 1 Memorandum explains:

7 Under Alternative C, there will be error in the administrative records, but we

believe these to be relatively limited due to the procedure following by SSA, 8 USCIS and State. In both Alternatives, the modeled cases will be subject to prediction error . . . . Alternative D has an additional source or error, response 9 error. This is where 2020 respondent give the incorrect status. Statisticians 10 often hope these errors are random and cancel out. However, we know from prior research that citizenship status responses are systematically biased for a 11 subset of noncitizens. Response error is only an issue in alternative D.

12 PTX-133 at 8.United States District Court

13 228. The memo concludes that, under Alternative D, for the group of 22 million

14 people for which the Bureau has both a census response and administrative records, but

15 where they do not match, the citizenship data will be less accurate due to response errors. Id.

16 229. The Bureau also concluded that under Alternative D, it would not receive a

17 response to the citizenship question from 35.4 million people and would likely be able to

18 observe citizenship status for 21.5 million people and impute citizenship status for 13.8

19 million people, concluding that “there will be a need for imputing many cases across either

20 alternative.” Id. at 7-8.

21 230. As in previous Census Bureau memoranda on the subject, the March 1 Memo

22 recommended against adding a citizenship question to the 2020 Census. Id. at 5.

23 6. The Set of 35 Questions Answered by the Census Bureau

24 231. Following the January 19 Memo, Comstock and Uthmeier developed and sent

25 to the Census Bureau a set of 35 questions for the Census Bureau to answer about the

26 analysis in the January 19 Memo. PTX-377. The Census Bureau’s responses to the questions

27 were submitted to the Commerce Department on March 1, 2018, along with Dr. Abowd’s

1 March 1 memorandum to Secretary Ross. PTX-133.

2 232. Question 31 asked, “What was the process that was used in the past to get

3 questions added to the decennial Census or do we have something similar where a precedent

4 was established?” Id. at 21. The Census Bureau provided the following response:

5 The Census Bureau follows a well-established process when adding or

changing content on the census or ACS to ensure the data fulfill legal and 6 regulatory requirements established by Congress. Adding a question or 7 making a change to the Decennial Census or the ACS involves extensive testing, review, and evaluation. This process ensures the change is necessary 8 and will produce quality, useful information for the nation. 9 The Census Bureau and the Office of Management and Budget (OMB) have laid out a formal process for making content changes. 10

11  First, federal agencies evaluate their data needs and propose additions or changes to current questions through OMB. 12  In order to be included, proposals must demonstrate a clear statutory orUnited States District Court

regulatory need for data at small geographies or for small populations.

13  Final proposed questions result from extensive cognitive and field 14 testing to ensure they result in proper data, with an integrity that meets the Census Bureau’s high standards. 15  This process includes several opportunities for public comment.  The final decision is made in consultation with OMB. 16  If approved, the Census Bureau implements the change. 17 Id. at 21-22. 18 233. The description of the “well-established” process in the Census Bureau’s 19 response to Question 31 is consistent with other Census Bureau documents describing the 20 process to add a question or change the content of the decennial census. PTX-4 at AR 3890, 21 3560, 9867; PTX-135; PTX-141. 22 234. The Administrative Record shows that, despite the fact that the questions were 23 directed to the Census Bureau, Commerce Department Deputy General Counsel Michael 24 Walsh drafted a different answer to Question 31. PTX-14. That answer states: 25 No new questions were added to the 2010 Decennial Census, so there is no recent precedent for considering a request to add questions to a Decennial 26 Census. Consistent with longstanding practice for adding new questions to the 27 ACS survey, the Census Bureau is working with relevant stakeholders to ensure that legal and regulatory requirements are fulfilled and that the 28 CASE NO. 18-cv-01865-RS; 18-cv-02279-RS 77 Case 3:18-cv-01865-RS Document 205 Filed 03/06/19 Page 78 of 126

question would produce quality, useful information for the nation. As you are 1 aware, that process is ongoing. Upon its conclusion, you will have all of the 2 relevant data at your disposal to make an informed decision about the pending request from the Department of Justice. 3 PTX-1 at 1296. 4 235. In Defendants’ first production of documents in the Administrative Record, 5 which they represented at the time constituted the complete administrative record, they 6 included a version of the 35 questions and answers that included only Walsh’s answer to 7 Question 31. See PTX-1 at 1296. The Census Bureau’s March 1 response to Question 31 was 8 produced later and as a result of the New York court’s order to supplement the record. See 9 PTX-133 at 21-22. 10 236. Question 1 of the 35 questions asked, “With respect to Alternatives B and C, 11 what is the difference, if any, between the time when the data collected under each 12 alternative would be available to the public?” PTX-133 at 11. The Census Bureau answeredUnited States District Court

13 Question 1 by stating that, between Alternatives B and C, there was no difference in the 14 timing in which the citizenship data could be offered to the public. Id. 15 7. Memo Re: “Key Differences Between Alternative C and Alternative D” 16 237. The Administrative Record also includes a memorandum entitled “Summary 17 Analysis of the Key Differences Between Alternative C and Alternative D.” PTX-24. Like 18 the March 1 Memo, this memorandum recommends using administrative data alone 19 (Alternative C) and not adding a citizenship question. Id. at 1-2. 20 238. The Census Bureau explained that while both Alternative C and D will require 21 the citizenship of a portion of the population to be imputed, or “modeled,” Alternative D will 22 suffer from accuracy issues because many noncitizens self-report as citizens, which will 23 systematically bias the modeling in Alternative D. Id. at 2. 24 239. Neither this memorandum, or any of the memoranda previously discussed, 25 analyzed whether NRFU would fully mitigate the nonresponse or whether it would ultimately 26 result in an undercount of certain populations. See PTX-22; PTX-101; PTX-133; PTX-148. 27 8. DOJ’s Refusal to Discuss Its Request with the Census Bureau 28 CASE NO. 18-cv-01865-RS; 18-cv-02279-RS 78 Case 3:18-cv-01865-RS Document 205 Filed 03/06/19 Page 79 of 126

1 240. Following the Census Bureau’s receipt of the December 12 Letter from DOJ,

2 the Census Bureau sought to meet with DOJ to discuss its stated need for block-level

8 Bureau’s ability to match survey responses with administrative records and resulting in less

9 accurate citizenship data. PTX-25 at 4.

10 256. The Decision Memo ultimately states that the Department of Commerce

11 prioritizes the goal of “obtaining complete and accurate [CVAP] data” over all else, and

12 concludes that adding the citizenship question is the best way to achieve this goal. PTX-26 atUnited States District Court

13 1, 7. The memo, however, points to no evidence to refute the Census Bureau’s analysis

14 which showed that use of a citizenship question would result in less accurate data than

15 administrative records alone. PTX-22, PTX-25.

16 257. The Decision Memo does, however, make the following assertion:

17 [P]lacing the question on the decennial census and directing the Census Bureau to determine the best means to compare the decennial census 18 responses to administrative records will permit the Census Bureau to determine the inaccurate response rate for citizens and noncitizens alike using 19 the entire population. This will enable the Census Bureau to establish, to the 20 best of its ability, the accurate ratio of citizen to noncitizen responses to impute for that small percentage of cases where it is necessary to do so. 21 PTX-26 at 5. 22 258. Nowhere in the Administrative Record does the Census Bureau state that adding 23 a citizenship question would increase the accuracy of its estimate of inaccurate citizenship 24 responses. Nor is it apparent why the inaccuracy rate of responders would help impute the 25 citizenship data of nonresponders. If actual citizenship is benchmarked to administrative 26 records, and the Bureau would use those records in any event, then adding a citizenship 27 question to the decennial census would not assist in the imputation. 28 CASE NO. 18-cv-01865-RS; 18-cv-02279-RS 83 Case 3:18-cv-01865-RS Document 205 Filed 03/06/19 Page 84 of 126

1 259. Finally, the Decision Memo does not discuss whether the Census Bureau’s

2 NRFU and imputation processes are likely substantially to mitigate any drop in self-response

3 caused by the citizenship question.

4 11. Testing of the Citizenship Question

5 260. The Administrative Record contains no evidence that the cognitive and field

6 testing that are part of the usual process for adding new questions to the census, as described

7 in the Census Bureau’s answer to Question 31 and in other documents in the Administrative

8 Record, were performed. Moreover, the Administrative Record contains no evidence that

9 Defendants considered any testing requirements from the Office of Management and Budget.

10 261. The Administrative Record does not include any information about what testing

11 was performed, or how the citizenship question performed on that testing, before it was

12 added to the ACS.

United States District Court

13 262. There is also no indication that Defendants considered obtaining any kind of

14 waiver of any applicable agency guidelines regarding testing, or that the Census Bureau

15 publicly noticed and provided a period for public comment about the citizenship question

16 before Secretary Ross made the decision to add it to the Census, as required by the Census

17 Bureau’s “well-established” process described with the Census Bureau’s answer to Question

18 31, and in other documents in the Administrative Record. See PTX-3 at 2236-37; PTX-4A at

19 155-56; PTX-4D at 812; PTX-135; PTX-141.

20 12. The Purpose and Timing of Secretary Ross’s Decision

21 263. The weight of the evidence clearly shows that Secretary Ross made the decision

22 to add a citizenship question before knowing whether DOJ had any need or even desire to

23 add the question. In other words, Secretary Ross did not decide to add the citizenship

24 question to the decennial census to aid in enforcement of Section 2 of the VRA.

25 264. There is no writing of any kind either in the Administrative Record authored by

26 the Secretary or anyone at the Commerce Department (or anyone else) that expressly and

27 directly describes the reasons why the Secretary wanted to add a citizenship question as early

16 the Census Bureau’s analysis concluded that adding a citizenship question is not necessary to

17 provide complete and accurate data in response to the Department of Justice’s request. Tr.

18 1063:18-22 (Abowd).

19 324. The Decision Memo stated:

20 Finally, placing the question on the decennial census and directing the Census Bureau to determine the best means to compare the decennial census 21 responses to administrative records will permit the Census Bureau to determine the inaccurate response rate for citizens and noncitizens alike using 22 the entire population. This will enable the Census Bureau to establish, to the 23 best of its ability, the accurate ratio of citizen to noncitizen responses to impute for that small percentage of cases where it is necessary to do so. 24 PTX-26 at 5. However, as of March 26, 2018, the Census Bureau had not analyzed these 25 presumptions. New York Tr. 977:25-978:7 (Abowd). The presumptions were never 26 discussed with Dr. Abowd and the Census Bureau does not agree with them. Id. at 976:18- 27 977:24 (Abowd). In fact, adding a citizenship question will make it more difficult for the 28 CASE NO. 18-cv-01865-RS; 18-cv-02279-RS 98 Case 3:18-cv-01865-RS Document 205 Filed 03/06/19 Page 99 of 126

1 Census Bureau to establish the accurate ratio of citizen to noncitizen responses to impute. Tr.

2 1061:8-11 (Abowd).

3 325. The March 26 Decision Memo states that “no one has identified any

4 mechanism” for determining whether the citizenship question would cause a drop in self-

5 response. PTX-26 at 5. There were, however, several mechanisms available to determine

6 whether the citizenship question would cause people not to participate in the census. Tr.

7 1061:23-1062:11 (Abowd). One such mechanism was the statistical analysis performed by

8 the Census Bureau. Id. at 1061:23-1062:3 (Abowd). Another mechanism would have been

9 an RCT, which the Census Bureau could have conducted, but did not. Id. at 1062:4-11

3 new questions added).” PTX-205 at 18.

4 329. One exception to the pretesting requirement of the Statistical Quality Standards

5 is that, “On rare occasions, cost or schedule constraints may make it infeasible to perform complete pretesting. In such cases, subject matter and cognitive experts must discuss the 6 need for and feasibility of pretesting. The program manager must document any decisions 7 regarding such pretesting, including the reasons for the decision. If no acceptable options for 8 pretesting can be identified, the program manager must apply for a waiver.” Id.; Tr. 833:19- 9 834:7, 1046:18- 1047:19 (Abowd). 10 330. Another exception is that, “Pretesting is not required for questions that 11 performed adequately in another survey.” PTX-205 at 18; Tr. 833:19-834:7, 1047:12-19 12 (Abowd). Those and other similar pretesting standards are used in the survey methodologyUnited States District Court

13 and data collection profession more generally. Tr. 84:19-21 (O’Muircheartaigh). 14 b. OMB’s Standards and Guidelines for Statistical Surveys 15 331. Under Congress’s direction, the Office of Management and Budget (OMB) has 16 also issued standards for designing, developing, and pretesting survey content. PTX-821 at 17 ¶¶ 55-56; PTX-262; PTX-266; PTX-267; PTX-612. The OMB-promulgated standards for 18 pretesting content on data collection instruments can be found in the OMB Standards and 19 Guidelines for Statistical Surveys. PTX-266. 20 332. The Census Bureau must follow the OMB Standards and Guidelines for 21 Statistical Surveys when preparing for and implementing the decennial census. Census 22 Bureau 30(b)(6) Dep. Vol. I 321:14-17; New York Tr. 989:15-17 (Abowd); PTX-821 at 23 ¶¶ 55-56; Tr. 88:22-89:12 (O’Muircheartaigh). These guidelines require that agencies 24 conduct a pretest of all components of a survey, including by conducting a field test and full

25 “dress rehearsal” for “highly influential surveys.” PTX-266 at 14.

26 333. OMB Standard 1.4 requires that agencies “ensure that all components of a

27 survey function as intended when implemented in the full-scale survey and that measurement

13 comport with OMB Guideline 2.3.1, New York Tr. 990:7-991:1 (Abowd), Alternative D 14 would not, given the degradation to data quality that would result. 15 c. Census Bureau Process for Adding or Modifying Census Content 16 336. In addition to abiding by the standards set forth above, the Census Bureau 17 follows a well-established process for adding or modifying questions on the decennial 18 census. This decade-long process involves multiple tests, including various randomized 19 control trials. New York Tr. 994:18-22 (Abowd). It also involves extensive cognitive and 20 field testing, ongoing research, and input from advisory committees. Id. at 996:24-997:14 21 (Abowd); PTX-214 at 4; Jarmin Dep. 47:13-48:17, 52:5-11, 138:16-139:19. 22 337. Another standard pretesting method is the randomized control trial (RCT), 23 which tests an operation with an added element and compares that to a test of the operation 24 without the element. Tr. 102:7-23 (O’Muircheartaigh). According to Dr. Abowd, the RCT is

25 the “gold standard” for testing a proposed question’s effect on the census count and data

1 Census Bureau 30(b)(6) Dep. Vol. II 426-430.

2 338. Based on the result of pretesting, the Census Bureau must finalize the actual

3 2020 Census questionnaires and then must submit them for OMB approval of the 2020

4 Census information collection. PTX-821 at ¶ 62.

5 d. Past Practices for Testing the Decennial Census Questionnaire

6 339. Past decennial census questionnaires—the complete 2010 Census

questionnaire, for example—were subject to extensive cognitive testing and field testing. 7 New York Tr. 997:11- 23 (Abowd). After the 1990 Decennial Census, the Census Bureau 8 investigated the possibility of adding a question concerning respondents’ Social Security 9 numbers on the decennial census short form questionnaire. Id. at 998:25-999:4 (Abowd). 10 340. To test that potential Social Security number question, the Census Bureau 11 conducted an RCT comparing a version of the short form with the Social Security number 12United States District Court

question and one without. Id. at 999:5-8 (Abowd). That RCT allowed the Bureau to assess 13 the impact on self-response rates of a Social Security number question. Id. at 999:9-11. 14 341. In that RCT, the self-response rate fell off in the group that had the Social 15 Security number question by 3.4 percent. Id. at 999:12-15. The conclusion drawn from that 16 RCT was that asking for a Social Security number would be sensitive. Id. at 999:16-18 17 (Abowd). As a result, the Census Bureau decided not to include a Social Security number 18 question on the decennial census questionnaire. Id. at 999:19-24 (Abowd). The Census has 19 never requested Social Security numbers on the census questionnaire, and one of the reasons 20 is the effect of the question on self-response rates, as revealed by the RCT. Id. 21 342. The RCT to assess the impact of a Social Security number question was 22 conducted before any decision was made about whether to include a Social Security number 23 question on the decennial census. Id. at 1000:8-13 (Abowd). 24 3. Whether ACS Data is Sufficient for VRA Enforcement Purposes 25 343. Plaintiffs offer the expert testimony of Dr. Lisa Handley and Professor Pamela 26 S. Karlan regarding whether the inclusion of a question about citizenship status in the 27 decennial census would assist in the enforcement Section 2 of the VRA. 28 CASE NO. 18-cv-01865-RS; 18-cv-02279-RS 102 Case 3:18-cv-01865-RS Document 205 Filed 03/06/19 Page 103 of 126

1 344. Dr. Handley is a consultant in redistricting and in electoral district design. She

2 has over thirty years of experience as an expert in redistricting, minority voting rights, and

8 1. “Contrary to Law” Review

11 1166 (9th Cir. 2004). Based on the Administrative Record alone, the decision to add the

12 citizenship question violates the APA as contrary to law.

United States District Court

13 a. Section 6(c)

14 Section 6(c) of the Census Act requires the Secretary to use administrative records to

15 address DOJ’s data request rather than adding a citizenship question on the census. Although

16 Congress delegated to the Secretary a degree of discretion in conducting the census, section

17 6(c), among other provisions, limits that discretion. Title 13, section 6 states in full:

18 (a) The Secretary, whenever he considers it advisable, may call upon any other department, agency, or establishment of the Federal Government, or of 19 the government of the District of Columbia, for information pertinent to the work provided for in this title. 20

21 (b) The Secretary may acquire, by purchase or otherwise, from States,

counties, cities, or other units of government, or their instrumentalities, or 22 from private persons and agencies, such copies of records, reports, and other material as may be required for the efficient and economical conduct of the 23 censuses and surveys provided for in this title. 24 (c) To the maximum extent possible and consistent with the kind, timeliness, quality and scope of the statistics required, the Secretary shall acquire and use 25 information available from any source referred to in subsection (a) or (b) of 26 this section instead of conducting direct inquiries.

27 13 U.S.C. § 6. Subdivision (c) of section 6 was added to the statute in the 1976 Census Act.

27 decision to do otherwise violates the APA.

2 Adding a citizenship question to the 2020 Census is also contrary to law because

3 Secretary Ross changed the subjects to be included on the Census after submitting his

4 Section 141(f)(1) report despite the absence of any new circumstances justifying such a

5 change. Section 141(f) provides:

6 (f) With respect to each decennial and mid-decade census conducted under subsection (a) or (d) of this section, the Secretary shall submit to the 7 committees of Congress having legislative jurisdiction over the census— 8 (1) not later than 3 years before the appropriate census date, a report 9 containing the Secretary’s determination of the subjects proposed to be included, and the types of information to be compiled, in such census; 10 (2) not later than 2 years before the appropriate census date, a report 11 containing the Secretary’s determination of the questions proposed to 12 be included in such census; andUnited States District Court

13 (3) after submission of a report under paragraph (1) or (2) of this

subsection and before the appropriate census date, if the Secretary 14 finds new circumstances exist which necessitate that the subjects, types of information, or questions contained in reports so submitted be 15 modified, a report containing the Secretary’s determination of the subjects, types of information, or questions as proposed to be 16 modified. 17 13 U.S.C. § 141(f). Secretary Ross submitted his section 141(f)(1) report in March of 2017. 18 PTX-264. That report did not include the subject of citizenship as a topic for the 2020 19 Census. Id. In March of the following year, Secretary Ross submitted his section 141(f)(2) 20 report.19 Consistent with his Decision Memo, that report states a citizenship question will be 21 included on the 2020 Census. Secretary Ross has not, however, submitted a report pursuant 22 to subdivision (f)(3), nor did he identify the “new circumstances” that justified the addition 23 of this new topic. 24 Defendants argue that only Congress can enforce section 141(f) because courts 25 19 26 Judicial notice is taken of Secretary Ross’s 141(f)(2) report, Questions Planned for the 2020 Census and American Community Survey, available at 27 https://www.census.gov/library/publications/2018/dec/planned-questions-2020-acs.html.

Capricious 20 i. Pretext 21 Extra-record evidence confirms that Secretary Ross’s justification for his decision to 22 add the citizenship question was pretextual. Several facts are particularly striking. First, 23 Secretary Ross’s senior officials at the Commerce Department all claim, rather implausibly, 24 to be ignorant of why Secretary Ross wanted the citizenship question on the 2020 Census. 25 Even Comstock, the Director of Policy in charge of soliciting the DOJ request for the 26 question, claims that he never asked Secretary Ross to explain his reasoning. Comstock Dep. 27

21 automatically render all demographic questions on the census unconstitutional. Indeed, it is

24 census “fulfills many important and valuable functions”). There is, however, no evidence that any other demographic question included on the census is likely to result in distributive 25 inaccuracy that threatens to distort the apportionment of representatives, or that these 26 questions were introduced despite the absence of any legitimate governmental interest in 27

1 their being asked.

2 Defendants argue against an Enumeration Clause finding because it would suggest

3 the constitutionality of a particular question could vary over time depending upon the social

4 and political context. This argument is unpersuasive. As the Supreme Court has recognized,

5 the constitutionality of a particular governmental action may depend on the larger social context in which that action occurs. See Shelby Cty., Ala. v. Holder, 570 U.S. 529, 553-557 6 (2013) (striking down Section 4 of the Voting Rights Act because, inter alia, the 7 preclearance formula set forth in that section was based on “decades-old data relevant to 8 decades-old problems, rather than current data reflecting current needs”); Grutter v. 9 Bollinger, 539 U.S. 306, 342-43 (2003) (explaining that “race-conscious admissions policies 10 must be limited in time” and predicting that 25 years later affirmative action would no longer 11 be necessary or constitutionally justified). Ultimately, Secretary Ross’s primary obligation 12 under the Constitution is to ensure a reasonably accurate enumeration of the public, and toUnited States District Court

13 attempt to design a survey that will achieve that goal in the year 2020. The fact that the 14 citizenship question may have been perfectly harmless in 1950, or that may be harmless 15 again in the year 2050 is of little consequence to the Secretary’s constitutional obligations 16 with respect to the accuracy of the 2020 Census. 17 The addition of a citizenship question to the 2020 Census cannot be said to bear a 18 “reasonable relationship to the accomplishment of an actual enumeration of the population.” 19 Wisconsin, 517 U.S. at 20. Secretary Ross’s decision thus violates the Enumeration Clause 20 of the Constitution. 21 VI. REMEDIES 22 A. Vacatur and Remand 23 In light of this Court’s ruling that Secretary Ross’s decision to include the citizenship 24 question on the 2020 Census violated the APA, the Secretary’s decision is hereby vacated 25 and remanded to the Department of Commerce. 5 U.S.C. § 706(2) (“[A] reviewing court 26 shall . . . hold unlawful and set aside agency action found to be” in violation of the APA). 27

B. Injunctive Relief20 1 A plaintiff seeking a permanent injunction must satisfy four requirements: “(1) that it 2 has suffered an irreparable injury; (2) that remedies available at law, such as monetary 3 damages, are inadequate to compensate for that injury; (3) that, considering the balance of 4 hardships between the plaintiff and defendant, a remedy in equity is warranted; and (4) that 5 the public interest would not be disserved by a permanent injunction.” eBay Inc. v. 6 MercExchange, L.L.C., 547 U.S. 388, 391 (2006). The decision whether to grant injunctive 7 relief ultimately falls within a court’s equitable discretion. Id. 8 Here, each of the four elements is satisfied. It is simply beyond dispute that a loss of 9 political representation to the state of California, among other harms identified by Plaintiffs, 10 qualifies as irreparable harm that cannot be remedied at law. Moreover, given the likely 11 harm to the quality of the census and the absence of any valid basis for Secretary Ross’s 12 decision, the balance of the hardships and the public interest both favor barring DefendantsUnited States District Court

13 from including the citizenship question in the census questionnaire. Accordingly, an

14 injunction is appropriate here. The proper scope of the injunction, however, requires

15 additional analysis.

16 As previously noted, this Court is mindful of concerns regarding the authority and

17 propriety of an individual district judge in one judicial district issuing an injunction of

18 nationwide application. In light of the unitary nature of the question at issue, by definition no

19 injunctive relief could be limited to only one geographic area or to only certain litigants. Put simply, the citizenship question is either on or off the 2020 Census, thereby practically 20 requiring an injunction nationwide in scope. 21 The appropriate terms of this injunction depend on which claim forms the basis for 22 relief. To the extent that the injunction relates solely to the APA claim, the reasoning in New 23 York et al. v. Department of Commerce, et al., No. 18-cv-2921 (S.D.N.Y.) is persuasive. As 24

25 20 Plaintiffs also request declaratory relief. In light of the vacatur of Secretary Ross’s 26 decision and the injunction barring Defendants from including the citizenship question on the 2020 Census, providing declaratory relief would serve little useful purpose and is 27 therefore denied.